Trustees for the time being of the Bymyam Trust v Butcher Shop and Grill CC (11877/2020) [2021] ZAWCHC 240; 2022 (2) SA 99 (WCC) (19 November 2021)

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[2021] ZAWCHC 240
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Trustees for the time being of the Bymyam Trust v Butcher Shop and Grill CC (11877/2020) [2021] ZAWCHC 240; 2022 (2) SA 99 (WCC) (19 November 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
[Reportable]
Case
No.: 11877/2020
In
the matter between:
THE
TRUSTEES FOR THE TIME BEING
OF
THE BYMYAM TRUST
Applicant
and
THE
BUTCHER SHOP AND GRILL CC
[1]
Respondent
JUDGMENT
DELIVERED ELECTRONICALLY ON 19 NOVEMBER 2021
PANGARKER AJ
Introduction
‘
These
are unprecedented circumstances which require a collaborative stance
from landlord and tenant. Hopefully, the anticipated
publication of
new Lockdown Regulations will be beneficial to our restaurant
business and we can then negotiate further in good
faith as to
further future rentals. Both landlord and tenant, self-evidently,
wish to return to normal business circumstances.’
[2]
1.
These words by the respondent, which are contained in correspondence
addressed
to the applicant’s legal representative, epitomise
what 2020 and the sudden arrival of the COVID-19 pandemic and its
resultant
government regulations, meant for  a long-established
and successful restaurant business in Cape Town.
2.
Following the declaration on 11 March 2020 by the World Health
Organisation
(WHO)
that
the coronavirus was a global pandemic, the President of South Africa
on 15 March 2020, declared the COVID-19 pandemic to be
a national
disaster and imposed a 21 day lockdown period in terms of the
Disaster Management Act
[3]
.
Pursuant to the declaration, the Minister of Co-operative Government
and Traditional Affairs, in terms of section 27 of the aforesaid
Act
issued various regulations
[4]
.
3.
In an attempt to curtail the spread of the coronavirus by limiting
contact between
people, further regulations were published in terms
of the Act from time to time which,
inter
alia
,
placed certain prohibitions on the operation of businesses and
commercial enterprises
[5]
. The
lockdown periods were extended and alert levels were adjusted
depending on the spread of the virus. Nobody, including businesses

with long-standing reputations and consistent growth and profit, was
left unaffected by the pandemic and the regulations imposed
on
individuals and businesses.
4.
It is accepted that the regulations issued imposed significant
restrictions on
economic activity, which required businesses to cease
operating during the lockdown periods with the exception of,
inter
alia
,
essential service providers. South Africa went into lockdown (alert
level 5) from midnight on 26 March to 30 April 2020. The alert
level
was adjusted to level 4 from 1 to 31 May 2020 and thereafter, to
level 3 from 1 June to 17 August 2020; followed by alert
level 2 from
18 August 2020. Adjusted alert level 1 took effect from the period 21
September to 28 December 2020
[6]
.
5.
Central
to this matter is the question whether a commercial tenant is
entitled to withhold payment of rental to the landlord payable
in
terms of a lease agreement during the period of national lockdown and
whether it is entitled to claim a rental remission, wholly
or in
part, as a result of the legislative restrictions caused by the
imposition of the regulations.
The
parties
6.
The applicant is the Trustees of an
inter
vivos
Trust which is the owner of two units consisting of sections 1 and 2
as described on sectional title plan number S 857/2015 in
the scheme
of the land and buildings situated in Greenpoint, plus an undivided
share in the common property in the same scheme
[7]
.
These  immovable properties
(the
leased premises)
were
leased to the respondent in terms of a lease agreement,
BNG2
[8]
concluded between the parties, duly represented, on 20 February 2014.
7.
At the time of conclusion of the lease, the respondent was a close
corporation
which in April 2017, was subsequently converted to The
Butcher Shop and Grill Pty Ltd. The leased premises are used as a
restaurant,
butchery, deli and wine shop with the largest part of the
leased area being used as the well-known premium steakhouse
restaurant.
The
applications
8.
With the imposition of the hard lockdown, restaurants were required
to close
with the result that the respondent ceased operation of the
restaurant on 23 March 2020 and there followed correspondence between

the parties regarding the respondent's rental obligations under the
lease. As alert levels changed in 2020, the restaurant was
allowed a
seating capacity of 50% and its case is that the regulations imposed
affected its business negatively with a substantial
loss of turnover.
It is common cause that the respondent did not fulfil its obligations
fully in terms of the lease.
9.
In August 2020, the applicant instituted its application by way of
Notice of
Motion wherein it seeks the following orders
[9]
:
1.
That the respondent make payment to the applicant of the amount of R1
576 919,
20 (one million five hundred and seventy six thousand nine
hundred and nineteen rand and twenty cents) representing all amounts

due by the respondent to the applicant, as at 1 August 2020, pursuant
to the terms and provisions of the lease agreement between
the
parties, dated 20 February 2014.
2.
Interest on the above amount from 1 August 2020, to date of payment
of all amounts
due, as at a rate equivalent to the prime rate of
interest of Absa Bank Limited.
3.
That the applicant be authorized to supplement the founding papers,
to claim
further amounts which may accrue in favour of and become
owing to the applicant, by the respondent, pursuant to the terms and
provisions
of the lease agreement between the parties, dated 20
February 2014, prior to the hearing and final determination of this
application.
4.
Costs of suit on a scale is between attorney and client, plus VAT.
5.
Further and/alternative relief.
10.
The respondent holds the view that during the lockdown, it was exempt
from paying the full
rental in terms of the lease agreement because
the legislative regulations constituted a
vis
maior
or
casus
fortuitus
[10]
.
I address this aspect in greater detail below.
11.
As things stand, and as the matter progressed from August 2020 and
procedural issues and
amendments of relief sought overtook some of
the initial relief sought, I am of the view that it is necessary to
set out in more
detail, the litigation between the parties in this
matter. The reference to the
main application
is a reference
to the applicant’s application and page references in footnotes
refer to the relevant pages of the record
unless otherwise
indicated.
12.
In response to the application, the respondent on 9 September 2020
gave notice of its intention
to oppose the application and delivered
a notice of counter application. It is common cause that the
affidavit by the respondent's
director, Mr Pick, constitutes an
answering affidavit to the main application and also the founding
affidavit in the respondent's
counter application
[11]
.
13.
The counter application which was eventually superseded by two later
amendments, seeks the
following relief
[12]
:
1.
That the applicant's application for the relief sought in its
notice of motion dated 26 August 2020 be stayed pending the outcome

of this counter-application.
2.
Condoning the late filing of this counter-application and the
answering affidavit
filed here with.
3.
Declaring that the respondent is entitled to a remission of the “base
rental”
in respect of the premises leased from the applicant in
terms of the agreement of lease attached to the applicant's founding
affidavit
marked “BNG 2” (‘the lease agreement’)
such that the rental payable for the period 1 April 2020 to 31 August

2020, exclusive of VAT, is as follows:
3.1
1 April to 30 April 2020: R55, 555, 09;
3.2
1 May to 31 May 2020: R65, 069, 00;
3.3
1 June to 30 June 2020: R96, 902, 00;
3.4
1 July to 31 July 2020: R143, 785, 00; and
3.5
1 August to 31 August 2020; R183, 053, 00.
4.
That the applicant's application is dismissed, and the applicant be
ordered to
pay the respondent's costs on a scale as between party and
party from 6 October 2020.
14.
The counter application seeks a stay (and dismissal) of the main
application and a declaratory
order that the respondent be entitled
to a remission of the base rental. The respondent’s replying
affidavit to its counter
application was met with the applicant’s
application to strike out certain parts thereof on the basis that it
constitutes
new matter in reply
[13]
.
The respondent subsequently delivered a notice to amend its counter
application by introducing alternative prayers for relief
to the
abovementioned orders sought. In summary, the respondent seeks as
prayer
3A
in the alternative to prayer
3
of its counter application, a declaration that it is entitled to a
remission of the base rental payable from 1 April to 31 August
2020
in an amount to be determined by the Court. In an alternative, the
respondent seeks a further order that the counter application
be
postponed for hearing of oral evidence on the question of quantum of
the respondent's rental remission counter claim/application
[14]
.
15.
Pursuant the respondent’s rule 28 notice to amend, the
applicant delivered a notice
in terms of rules 30 and 30A on the
basis that the rule 28 notice was delivered outside the prescribed
10-day period contemplated
in rule 28(5). The respondent then
delivered its amended notice of counter application which included a
prayer for condonation.
Subsequently, the applicant, not to be
outmatched, delivered a notice of amendment in respect of its main
application seeking the
following amendment: that the amount
initially claimed in its notice of motion be amended to reflect an
increased amount of
R2
980 845, 11
,
and that the date of
1
August 2020
be changed to
1
June 2021
[15]
.
The basis for the amendment was that according to the applicant, the
respondent was still not paying the base rental as per the
lease
agreement.
16.
It is important to note that in its supplementary affidavit attached
to its rule 28 notice,
the applicant attached
BNG24
,
invoices for rental and levies up to June 2021 which are addressed to
Apoldo Trade CC t/a The Butcher Shop and Grill
.
A
day prior to the hearing date of 15 June 2021, the respondent
delivered its notice of objection to the applicant's notice
of
amendment, objecting on the basis that the applicant’s notice
of amendment was served on the respondent in circumstances
where the
matter had already been set down for hearing and that no explanation
was provided for the delay which was prejudicial
to the latter for
various reasons set out
[16]
which in my view, are not relevant to the main issues in this matter.
17.
The applications were not argued on 15 June 2021 as the procedural
issues described above
culminated in an order being taken by
agreement between the parties
[17]
.
The Order regulated the conduct of the matter, including the delivery
of the applicant's late heads of argument, amendments and

supplementary affidavits but absent was an agreement regarding the
applicant's application to strike out, which was argued
simultaneously
with the main and counter application. Insofar as
costs were concerned, at paragraph 9 of the Order the parties agreed
that all
questions related to costs would stand for later
determination. On 9 July 2021, the applicant amended its main
application.
18.
The respondent delivered Mr Pick’s further supplementary
affidavit to the applicant’s
amended application and so too the
applicant delivered Mr Gamsu’s
[18]
supplementary
affidavit of 1 June 2021 in accordance with paragraph 6 of the Order.
Pursuant thereto, and in terms of paragraph
7 of the Order, Mr Gamsu
deposed to a supplementary replying affidavit in the main application
and supplementary answering affidavit
in the counter application as
amended.
19.
It was pursuant to the content of various paragraphs in the
aforementioned affidavit of
the applicant and the attachment of an
addendum to the lease,
BNG31
[19]
,
that the latter introduced into the proceedings a reference to the
juristic entity, Apoldo Trade (Pty) Ltd (Apoldo). The upshot
of this
reference and introduction was that the   respondent then
gave notice of its intention to amend its amended counter
application
by inserting paragraph
1A
therein which reads as follows:
Insofar
as necessary, declaring that the separate corporate personalities of
the respondent and Apoldo Trade (Pty) Ltd be disregarded
for purposes
of the relief sought by the respondent in paragraphs 2 to 4
below
[20]
.
20.
On 9 July 2021, the respondent delivered a supplementary replying
affidavit responding to
the averments related to the addendum to the
lease and at paragraph 9.2 of such affidavit, Mr Pick makes the
averment that:
9.2
Secondly, and in any event, the facts of this case are such that the
respondent and Apoldo
should for all intents and purposes be regarded
as the same entity, and that a claim for remission in Apoldo’s
hands is in
fact a claim for remission in the respondent’s
hands.
21.
The procedural marathon did not end there as the applicant, on 23
July 2021, launched its
second application to strike out; this
instance, paragraphs 9.2 to 22 of the respondent’s
supplementary affidavit referred
to in the preceding paragraph. The
basis of the application was that these paragraphs, together with the
annexures to the affidavit
constitute new matter
[21]
.
22.
In conclusion, the further amended notice of counter application
dated 26 July 2021 which
contains the two amendments which I have
referred to above, is the final version of the respondent’s
counter application.
The main, counter application as amended and the
two striking out applications were argued by counsel on 29 July 2021.
Factual
background
23.
The conclusion of the lease agreement on 14 February 2014 at Cape
Town and its terms are
common cause between the parties and so too
the fact that the restaurant occupies the bulk of the leased
premises, at least 90%
thereof. The base rental payable monthly in
advance at the launch of the main application was
R286
114, 87
excluding VAT for the entire leased premises. It is undisputed that
the premises also comprise a wine shop, butchery and deli,
though it
is in dispute that the respondent has access to a storage facility.
Ultimately, this dispute is not material to my determination
of the
applications. The lease would continue for 10 years from date of
commencement and was subject to a renewal period of 5 years
[22]
.
24.
The base rental was payable as per clause 6.3 of the lease agreement
which states that:
All
amounts payable by the Tenant to the Landlord in terms of this
Agreement shall be paid free of deduction and set-off into the
bank
account of the Landlord or such other bank account in the Republic of
South Africa nominated by the Landlord, in writing.
25.
Until March 2020, prior to the declaration of the national sate of
disaster, the respondent
had paid the full rental and operational
charges timeously. While the applicant's invoices for the period
March to August 2020
reflected in annexures
NG 6.1
to
6.6
for
R1 576 919, 20
are not denied, the respondent indeed
denied that the amount was due and owing. Ancillary charges for
rates, taxes, utilities and
the like were indeed paid to the
applicant during the abovementioned and extended periods mentioned in
the applications.
26.
In a letter dated 23 June 2020
[23]
,
the applicant’s representatives were informed that the tenant
ceased the operation of its restaurant business on 26 March
2020 due
to the government's imposition of the COVID-19 regulations and
indicated that it would continue to do so dependent on
amendments to
those regulations. Furthermore, that  as a result of the changed
circumstances attended by the legislative prohibitions,
which made
its performance of its obligations impossible, the tenant was thus
excused from its contractual liability and obligation
for as long as
such regulations existed. In addition to the above, it was alleged
that a supervening event made performance impossible
and thus there
was thus no beneficial use of the leased premises for the purpose for
which it was intended.
27.
The respondent’s case is further that the closure of the
restaurant was directly related
to the regulations imposed and that
the applicant was likewise precluded from providing beneficial
occupation of the premises to
the tenant. The letter concludes that
the tenant was entitled to a rental remission for the entire period
for which the regulations
prohibited its use of the leased premises
because the COVID-19 pandemic and its concomitant regulations were
examples of
vis maior
which made performance objectively
impossible. The payment of part of the rental was tendered.
28.
In response, the applicant through its attorney, indicated that the
abovementioned correspondence
exhibited a lack of understanding of
the law
[24]
regarding
remission of rental and that this view was not
"legally
sustainable"
[25]
.
In
support of its stance, the applicant relied on the definition of
"beneficial
occupation"
in clause 1.2.2 of the lease which defines the term as “
the
physical
possession and control of the leased premises"
[26]
.
The attorney furthermore indicated that the applicant was not
required in terms of the lease to provide that the respondent must
be
able to trade and operate its commercial business from the premises.
29.
In addition, the applicant’s stance was that in terms of clause
26 of the lease, rental
was due to it without deduction or set off
and that the problems which arose as a result of the imposition of
the regulations did
not excuse the respondent’s obligation to
pay the rent monthly in advance
[27]
.
In the correspondence, the applicant denied a reciprocal obligation
on its part as rental was due monthly in advance.
30.
It is furthermore contended that the tenant had some beneficial
occupation even during alert
level 5 in that it was operating the
butchery and therefore able to perform some business from the leased
premises. In addition
to the aforementioned, the applicant expressed
a view that even if a loss of beneficial occupation entitled the
respondent to an
abatement of rental, which the applicant in any
event denied, then the amount was not easily ascertainable, which is
a necessary
requirement for a rental remission claim. It is noted
that the applicant’s earlier correspondence dated 17 June 2020
notified
the respondent of the arrears in terms of the lease and
requested payment within 7 days’ failing which the lease would
be
cancelled. It is common cause that the lease was not cancelled.
31.
On 25 September 2020 the respondent made an open offer to settle the
application on the
basis that the rental be paid as set out in in
paragraph 7 of its correspondence
[28]
.
The amounts per month constituted a portion of the monthly rental
due, commensurate with the respondent’s ability to trade
from
the premises for the months of April to August 2020. In annexure
AA4
,
the applicant’s attorney requested that the respondent provides
evidence of a loss of beneficial occupation, as alleged
and
that until then, the applicant remained unmoved by the respondent's
complaint that it was entitled to any rental remission
for the period
claimed.
32.
Subsequently to the above mentioned correspondence, the respondent’s
attorney provided
a summary of turnover figures for the preceding 4
years which, it was submitted, illustrated the material impact which
the lockdown
regulations had on the respondent’s monthly
turnover
[29]
. According to the
respondent’s summary, the turnover percentage change or
reduction for the period April to August 2020 stood
at 56%, compared
to 2019 at 11% for the same period
[30]
.
Although the open tender was extended to 6 October 2020, the
applicant rejected it and forged ahead with its application.
33.
The respondent’s opposition to the main application sets out
that the restaurant has
a seating capacity of 200 people and as the
alert levels changed in lieu of various regulations passed, it was
only allowed a 50%
capacity, thus 100 guests, applying social
distancing protocol. The butchery together with the deli and wine
shop has a smaller
gross margin than the restaurant. The respondent
makes the averment that it suffered a reduction in turnover during
the period
1 April to 31 August 2020 of
R6 841 269
or an
average monthly decrease of 56%, and its losses for the 2020
financial year was
R1 254 000
. All ancillary charges were paid
during the extended lockdown period.
34.
The respondent’s deponent, Mr Dani Pick, makes the averment
that the lease does not
alter the common law in relation to
vis
maior
and persists that the applicant was not able to give it beneficial
occupation of the premises and thus it was entitled to remission
of
the rental. It is evident from the affidavits that the parties
disagree about the meaning of the words “
beneficial
occupation”
and while the respondent agrees that it could operate the butchery
during April to August 2020 to a limited extent, it disagrees
that
the common law rental remedy of remission does not apply. The facts
indicate that the respondent paid part of the base rental
for the
abovementioned period and its extension
[31]
.
35.
The applicant denies that the regulations limited the respondent’s
trading ability
to 50%. Furthermore, it takes issue that a reduction
or loss of turnover would equate to  a loss of beneficial
occupation.
According to the applicant, the respondent failed to
provide proof of its  loss of net profit in its answering
affidavit
[32]
and therefore it
follows that there was no loss of beneficial occupation, hence the
respondent is not entitled to rental remission.
36.
The counter application prior to the amendments seeks a rental
remission of the amounts
for the specific periods from April to
August 2020 as mentioned in paragraphs 3.1 to 3.5 of such
application. On my understanding,
these amounts reflect the
equivalent of 10% of the turnover for those periods which are
reflected in the table at paragraph 40
of Mr Pick’s answering
affidavit. The respondent contends that its   counter
application is not only about loss
of profit in respect of a
determination of loss of beneficial occupation. Furthermore, it
alleges that its contention that the
regulations limited its ability
to trade from the leased premises was not denied by the applicant.
According to the respondent,
the reduction in its turnover is
evidence of the extent to which it was deprived of beneficial
occupation of the leased premises.
As an illustration, the respondent
provides annexure
RA1
[33]
,
its
management accounts for April to October 2020 which it alleges, also
indicates its loss of profit. The correctness of
RA1
is confirmed by Mr Hendler of MGI Bass Gordon, auditor and accountant
of the respondent.
37.
I indicated above that the parties amended the relief sought in their
applications. To illustrate,
the applicant seeks arrear rental until
1 June 2021 and for an increased amount of R2 980 845, 11. This is
supported by Mr Gamsu’s
supplementary affidavit  of 1 June
2021 wherein the applicant relies upon invoices from September 2020
to 1 June 2021 for
the increased arrear rental amount as anticipated
in terms of prayer 3 of its original Notice of Motion
[34]
.
38.
The respondent’s amended counter application seeks, in addition
to the relief in the
initial application, a declaratory order that
the separate corporate personality of the respondent and
Apoldo
be disregarded, and alternative relief that the amounts claimed as
rental remission for the period 1 April to 1 June 2021 be determined

by the Court.
39.
Mr. Pick's supplementary affidavit dated 23 June 2021 which addresses
the applicant’s
amended relief as described above, disputes the
amount claimed as the applicant included staffing costs from April
2020 to June
2021 totalling
R142 567, 26
for which the
respondent disputes any liability. Secondly, the applicant is accused
of failing to take into consideration
R277 653, 94
which
constitutes rental payment and other charges for June 2021. I must
point out that the applicant’s counsel at the commencement
of
proceedings on 29 July 2021 indicated that this amount was taken into
account, hence the reduction of the applicant’s
claim, which I
address at the conclusion of the judgment.
40.
The respondent takes further issue that the interest levied from
September 2020 to June
2021 is incorrect and submits that the
applicant bases the calculation on its entitlement to have received
payment of 100% base
rental from April 2020 which fails to take into
account the respondent’s rental remission. The respondent also
alleges that
it paid at least 52% of the base rental for 1 April 2020
to 30 June 2021 and that rental remission of 48% of the base rental
is
fair, reasonable and proportionate given that it was deprived of
the full use and benefit of the leased premises.
41.
As to annexure
RA1,
its
management accounts for the 2020 period, Mr Pick points out that it
contains two errors: firstly, it erroneously reflects depreciation
as
a monthly expense of
R120
000
rather
than
R208
000
,
and secondly, it reflects
R372
748
as having been paid as the April 2020 rental
[35]
.
It is explained that Mr Hendler rectified these errors
subsequently
[36]
and to this
end, a confirmatory affidavit is provided.
42.
The respondent’s case is further that its business was
detrimentally affected by the
lockdown regulations
[37]
as
follows:
42.
1   from 1 June to 17 August 2020 (alert level 3), trading
was allowed from the leased premises; no alcohol was allowed
to be
sold nor served; seating capacity was restricted to 50% and the
business could only operate within stipulated times;
42.2
from 18 August to 20 September 2020 (alert level 2), alcohol was
allowed on an on-consumption basis and the
seating capacity remained
at 50%;
42.3
from 20 September to 29 December 2020 (alert level 1) the
respondent’s ability to trade remained as
for alert level 2;
42.4
from 29 December 2020 to 12 February 2021 (alert level 3), the
business operated as set out in paragraph
42.1 above
[38]
;
42.6
from 12 February to 15 June 2021, the business was allowed to operate
subject to an 23h00 curfew and 50%
seating capacity;
42.7
from 16 June 2021 and at the time Mr Pick’s supplementary
affidavit was delivered, the curfew for restaurants
was adjusted to
22h00 with the onset of the
third wave
, meaning that they had
to close by 21h00, which was during peak business service.
43.
Mr Pick attaches annexure
D
[39]
,
the supplemented management accounts for 1 March 2020 to end May
2021. The respondent asserts that annexure
D
reflects
the reduction in turnover during the abovementioned lockdown periods
and that it is entitled to approximately 48% rental
remission as
claimed in its amended notice of counter application; alternatively,
that it is entitled to such rental remission
in an amount to be
determined by the Court on the papers, and further alternatively, to
an amount as determined after the hearing
of oral evidence on the
quantum of loss suffered.
44.
In his supplementary replying affidavit dated 2 July 2021, Mr Gamsu
stated that in terms
of clauses 7.2 and 7.3 of the lease the
applicant is entitled to charge staffing   costs and that
the respondent was
paying these amounts since the inception of the
lease, yet objected to these charges from April 2020. The applicant
disputes that
the calculation of interest is incorrect as alleged and
takes issue with the explanation regarding errors in annexure
RA1
.
Furthermore, the applicant holds the view that Mr Hendler, who
admitted the accounting errors on the supplemented management
accounts, is not entitled to depose to a contradictory affidavit in
circumstances where   he had previously confirmed
that
RA1
was indeed correct. It is submitted that the Court cannot place any
credible reliance on the amounts provided by the respondents
for
purposes of justifying its claim for a remission of rental. The
applicant persists with its stance that the respondent has
failed to
provide any supporting documentation to show how the suggested losses
suffered as a result of a loss of beneficial occupation
due to the
regulations, were calculated.
45.
The matter then took a surprising turn when Mr Gamsu, with reference
to an audit report
compiled by the respondent’s auditors
[40]
and which was provided to the applicant’s attorney in mid-June
2021, highlights that this report refers to turnover figures
of an
entity known as Apoldo Trade (Pty) Ltd and not to the respondent and
thus it cannot be used as justification for the respondent's
failure
to pay rental to the applicant. According to the applicant, Apoldo
was not its tenant in terms of the 2014 lease agreement.
46.
According to the applicant, it became aware sometime after conclusion
of the lease that
another entity was occupying the leased premises
and queries were addressed to Mr. Hendler in this regard. Mr
Hendler’s explanation
in an email dated 7 June 2019
[41]
was that  Mr Alan Pick, the father of Mr Dani Pick, was the 100%
shareholder of the respondent which trades primarily in Johannesburg

and at the commencement of trading in Cape Town, the former had
decided to update his new business through a separate entity named

Apoldo Trade CC which was converted to a private company in 2017. It
is explained that the shareholding in respect of both entities

remained the same and that MGI Bass Gordon were the auditors for
Apoldo and the respondent. Mr Pick explains that turnover
certificates
for the tenant was provided to the applicant in the name
of Apoldo and that the auditors were under the wrongful impression
that
the applicant was aware of these facts.
47.
Mr Hendler confirmed in his email that Apoldo was the entity trading
from the leased premises
,
that there was no change in
composition of the shareholding of either juristic entity and that
there was no prejudice to the applicant
in the circumstances. Thus,
the request in 2019 was that Apoldo was to continue to occupy the
premises as the tenant, alternatively,
that the applicant was
requested to consent to the respondent sub-letting the premises to
Apoldo and further alternatively that
the lease with the respondent
be terminated and a new lease be concluded with Apoldo
.
48.
The upshot of the information provided by Mr. Hendler was that an
addendum was concluded
to the 2014 lease agreement and was signed by
the parties’ representatives and Apoldo on 14 August 2019
[42]
.
The addendum provided that the applicant consented to the respondent
sub-letting the premises to Apoldo; the terms and conditions
of the
lease remained binding on the respondent and the latter and Apoldo
agreed to be jointly and severally equally responsible
for the terms
of the lease agreement.
49.
The applicant argues that in terms of the addendum, Apoldo is the
respondent’s sub-tenant
and that the respondent’s
averments which it presents in order to avoid liability in terms of
the lease agreement apply to
Apoldo and not to the respondent and
therefore it is submitted that to the extent that there was a loss of
beneficial occupation
of the leased premises, such loss was suffered
by Apoldo and not by the respondent. Thus, it is argued that the
respondent cannot
claim the remission of rental in its favour.
50.
In the respondent’s further supplementary replying affidavit
dated 9 July 2021, Mr
Pick points out that the fact that Apoldo is in
occupation of the premises as sub-tenant does not preclude it from
claiming rental
remission. Importantly, it is contended that there is
no difference between the two entities and that for purposes of the
counter
application, the respondent and Apoldo should be regarded as
the same entity. Following on from the latter submission, it is
asserted
that a claim for rental remission by Apoldo is the
equivalent of a claim for rental remission in the hands of the
respondent. Ultimately,
Mr Pick states that the business of the
respondent and that of Apoldo is not distinguishable and that any
such distinction is in
fact artificial.
Issues
to determine
51.
The relief sought by the parties evolved to a certain extent
subsequent to their respective
amendments of their applications and
in light thereof, in my view the issues which require consideration
in this matter may be
summarized as follows:
51.1
the applicant’s two striking out applications;
51.2
whether the separate corporate personalities of the respondent and
Apoldo should be disregarded for purposes
of the respondent's relief
claimed in its further amended counter application i.e. whether the
corporate veil should be pierced;
51.3
dependent on my finding in the preceding paragraph, whether the
respondent is entitled to claim rental remission,
and if so, to what
extent (quantum);
51.4
the applicant’s main application as amended;
51.5
Costs.
52.
Aspects regarding whether I should stay the hearing of the main
application or not, may
be dispensed with easily. In view of the
relief sought and the counter application based on the common law, it
is prudent to determine
the counter application before the main
application.
The
first application to strike out
53.
The applicant’s first application
[43]
to strike out certain parts of the respondent’s replying
affidavit as new matter is in respect of the last sentence of
paragraph
13 including annexure
RA1
,
paragraphs 14 and 15 in their entirety and the last sentence of
paragraph 38
[44]
. The relevant
parts of paragraphs 13, 14 and 15 all relate to the respondent’s
averments that it sustained a financial loss
during the lockdown due
to the regulations.
RA1,
its
management account for March to October 2020, is used in support of
its claim that it suffered financial losses.
54.
It is trite that a party must make out its case in motion proceedings
in its founding affidavit
and that it will not generally be allowed
to supplement such case by adducing supporting facts in its replying
affidavit. At paragraph
13 of the Supreme Court of Appeal’s
(SCA) judgment in
Mostert
and Others v Firstrand Bank t/a RMB Private Bank
[45]
,
van der Merwe JA stated the following:
‘
It
is trite that in motion proceedings the affidavits constitute both
the pleadings and the evidence. As a respondent has the right
to know
what case he or she has to meet and to respond thereto, the general
rule is that an applicant will not be permitted to
make or supplement
his or her case in the replying affidavit.
This,
however, is not an absolute rule. A court may in the exercise of its
discretion in exceptional cases allow new matter in a
replying
affidavit
.
[46]
See
the oft-quoted dictum in Shephard v Tuckers Land and Development
Corporation (Pty) Ltd (1)
1978 (1) SA 173
(W) at 177G-178A and the
judgment of this court in Finishing Touch 163 (Pty) Ltd v BHP
Billiton Energy Coal South Africa Ltd &
others
[2012] ZASCA 49
;
2013 (2) SA 204
(SCA) para 26. In the exercise of this discretion a
court should in particular have regard to: (i) whether all the facts
necessary
to determine the new matter raised in the replying
affidavit were placed before the court; (ii) whether the
determination of the
new matter will prejudice the respondent in a
manner that could not be put right by orders in respect of
postponement and costs;
(iii) whether the new matter was known to the
applicant when the application was launched; and (iv) whether the
disallowance of
the new matter will result in unnecessary waste of
costs.’
55.
In
Finishing
Touch 163 (Pty) Ltd v BHP Biliton Energy Coal South Africa Ltd &
Others
[47]
,
the respondent in the appeal raised new matter in its replying
affidavit in the proceedings in the Court
a
quo
.
The SCA, in referring to the exceptional circumstances which may
arise where a Court in its discretion may allow new matter in
reply,
distinguished in paragraphs 25 to 27 of its  judgment between
circumstances where new facts are brought to light in
reply for the
first time but were known to the applicant at the time of deposing to
the founding affidavit and a situation where
facts which alleged in
the answering affidavit reveal the existence or possible existence of
a further ground for the relief which
the applicant seeks
[48]
.
56.
Having regard to these authorities, it is apparent that allowing new
matter in a replying
matter would be limited to exceptional
circumstances which fall to be determined in the exercise of a
Court’s discretion.
It is trite that such discretion must be
exercised judicially having regard to all the facts and circumstances
of the particular
matter, and in my view, also having regard to the
procedural history of the particular matter which such Court is
seized with.
I say this because in a matter such the one before me,
where there were various amendments which affected and supplemented
the
initial relief sought by the parties, together with condonation
and irregular step applications, the material facts and circumstances

relevant to the exercise of my   discretion when
determining the striking out application cannot be viewed in
isolation.
57.
If the reason for introducing new matter in reply is with a view to
reply to a defense raised
by the other party and which is a matter
which could not have been in the original affidavit, then the
discretion should be exercised
in favour of allowing the new matter.
The applicant's counsel argued that the respondent had failed to
present any evidence in
the founding affidavit to its counter
application indicating that it had sustained any loss as a result of
the legislative prohibitions
nor had it provided any proof or
evidence of an alleged loss of beneficial occupation. Counsel
submitted that the only averments
made were that the respondent had
suffered a reduction in turnover, but had failed to provide any
documentary evidence of such
reduction and how it was calculated. It
is the applicant’s further submission that the respondent had
attempted to introduce
new evidence by way of annexure
RA1
which
purports to prove the alleged losses for the period March to October
2020. The argument is that
RA1
should have been attached to Mr
Pick’s founding affidavit to the counter application and that
it constitutes new matter.
58.
The respondent's counsel firstly takes issue with the fact that the
first striking out  application
was launched more than 6 months
after the respondent had already filed its replying affidavit to the
main application
[49]
.
Secondly, it is submitted that the applicant suffered no prejudice as
it had never raised the issue or an objection related to
new matter
prior to May 2021.
59.
In the respondent’s affidavit supporting the counter
application, it attached  management
accounts from March 2019 to
March 2020 which indicated sales excluding VAT and its reduced
turnover for the period April to August
2020
[50]
.
It has always been   the respondent’s claim that the
reduced turnover showed the loss it suffered due to the imposition
of
the legislative prohibitions on trading, thus it did not have
beneficial occupation of the leased premises and it therefore

followed that it was entitled to a remission of rental for the
periods mentioned. In paragraphs 25, 47, 49, 50, 53, 63 and 64 of
the
applicant’s answering affidavit, Mr Gamsu indicates that the
applicant   disagreed and took issue that a loss
in
turnover amounted to proof of a financial loss and loss of beneficial
occupation. The applicant, though, goes a step further
in paragraph
63
[51]
where Mr Gamsu states
the following:
‘
What
is required, before a remission of rental can be considered, or
agreed, is real evidence of the actual loss of beneficial occupation

suffered by the respondent. Unless the respondent can show real
evidence that it suffered an actual loss of net profit pertaining
to
the whole of the leased premises, in respect of the Cape Town branch
of the respondent’s operations, as a result of its
lack of
beneficial occupation, there can be no question of a loss of
beneficial occupation.’
60.
Evident from the above is that the applicant clearly does not view a
reduced turnover as
a financial loss which warrants a remission of
rental, while the respondent on the other hand, disagrees. Thus, in
reply to Mr
Gamsu’s denial regarding the loss of turnover and
that it constitutes evidence of financial loss, and simultaneously
responding
to the applicant’s call to produce ‘
real
evidence’
, the respondent in reply then provides the
management accounts in
RA1
and responds to the applicant’s
averments in the replying affidavit. In my view, the dispute as to
whether a loss of turnover
constitutes actual financial loss is a
dispute which permeates throughout the matter.
61.
Having regard to the affidavits, I am in agreement with the
respondent’s counsel that
RA1
and paragraphs 13, 14, 15 and 38 are responses to the queries raised
in the applicant’s answering affidavit. To clarify,
paragraph
15 specifically elaborates on annexure
RA1
and I am inclined to agree that it attempts to answer the applicant’s
invitation to provide evidence of a financial loss.
Whilst
RA1
was not attached to Mr Pick’s affidavit in support of the
counter application, in my view it elaborates on the turnover table

at page 189 and to the extent that it constitutes new matter, it
provides a basis for further relief sought in the counter application

as referred to in
Finishing
Touch 163
[52]
.
Paragraph 38 expands on the content of
RA1
and
the alleged financial loss suffered during 2020.
62.
The applicant's decision to apply to strike out the aforesaid
paragraphs and
RA1
from the respondent’s replying
affidavit more than 6 months after it was filed, negates any
prejudice which it may have suffered
as a result of the content
thereof. To add, I have not been provided with an explanation as to
what prejudice, if any, would be
suffered by the applicant should
these paragraphs and
RA1
remain in Mr Pick’s affidavit.
Furthermore, there was no suggestion of a postponement and as matters
transpired, the parties
had in any event agreed on the filing of
supplementary affidavits albeit to deal with limited issues raised
relating to Apoldo
.
63.
Having
regard to the considerations mentioned by the SCA in the
Mostert
judgment
referred to above
,
I
am satisfied that the introduction of the information and evidence
contained in paragraphs 13, 14, 15, 38 and
RA1
,
whilst to a limited extent indeed constitutes new matter, and
considered against the backdrop of the entire matter and disputes

between the parties, do not prejudice the applicant. Furthermore, I
am also satisfied that all these factors contribute to establishing

exceptional circumstances which warrant the exercise of my discretion
in favour of the respondent. In the result, the first application
to
strike out falls to be dismissed.
The
second application to strike out
64.
I indicated earlier in the judgment that the parties reached an
agreement on 15 June 2021
regarding the filing of further affidavits.
The applicant was given leave to file a supplementary answering
affidavit to the counter
application and introduced an addendum to
the lease as an annexure to Mr Gamsu’s affidavit for the first
time in the matter.
In terms of the Order, the respondent was allowed
to reply specifically to the issue of the addendum and did so on 9
July 2021.
It bears reminding that the addendum formed part of the
evidence relevant to the applicant’s mention and introduction
of
Apoldo.
65.
The applicant seeks to strike out paragraphs 9.2 to 22 plus any
annexures of the respondent’s
supplementary replying affidavit.
The abovementioned paragraphs deal with, explain and refer to the
relationship between the respondent
and the entity Apoldo
.
The
annexures are the financial statements of Apoldo, an ABSA Bank
overdraft facility letter addressed to the respondent and an
“
about”
page printed from the respondent’s website explaining its
history from inception 27 years ago.
66.
Subsequent to the applicant’s supplementary answering affidavit
doing so, there was
no specific reference in the matter to an
addendum to the lease or to Apoldo
[53]
.
While I agree that this is new matter, the content of the
supplementary replying affidavit certainly focuses on the addendum
and the reference to Apoldo. Furthermore, it is the applicant which
belatedly raised as a defence to the counter application, the
fact
that the respondent does not occupy the leased premises but that
another entity does. Certainly, the goal posts shifted with
the
introduction of these facts and the respondent was allowed to
respond, which it did.
67.
These facts and the introduction of the addendum and Apoldo lead to
an amendment of the
counter application. Viewed in isolation, without
regard to Mr Gamsu’s supplementary affidavit and the addendum,
I would
certainly agree with the applicant’s counsel that
paragraphs 9.2 to 22 constitute new matter which could be prejudicial
to
the applicant. However, in light of how the matter evolved, the
introduction of the addendum and Apoldo and the Court Order allowing

the respondent to reply to the new facts alleged by the applicant, I
see no reason why these paragraphs and accompanying annexures
should
be struck out.
68.
In my view there is no prejudice to the applicant should paragraphs
9.2 to 22 of Mr Pick’s
supplementary replying affidavit remain
and there are sufficient exceptional circumstances as determined
above which persuades
me to exercise my discretion in the
respondent’s favour and allow the paragraphs and annexures to
remain. Thus, the   second
striking out application should
also be dismissed.
Piercing
the corporate veil: the issue of Apoldo and the respondent
69.
The references above to the introduction of Apoldo as a juristic
entity occupying the leased
premises, the conclusion of the addendum
to the lease and its content and the respondent’s amended
relief seeking a declaration
that separate corporate personalities of
the respondent and Apoldo be disregarded for purposes of the relief
sought by the respondent,
refer.
70.
The respondent submits that the facts of the matter are of such a
nature that a claim for
remission in Apoldo’s hands are in fact
a claim for remission in the respondent's hands. I am referred in
this regard to
Ex
parte Gore and others NNO
[54]
in support of the amended relief sought. The submission is that
Courts have no general discretion to disregard a company's separate

corporate personality merely because it would be just and equitable
to do so, but that the Courts do pierce the corporate veil
where
justice requires it. Furthermore, the respondent’s counsel
acknowledges that in most instances, the doctrine of piercing
the
corporate veil is frequently invoked where there has been an abuse of
the separate juristic personality of the company by,
for example,
shareholders or directors, but argues that there would be no reason
preclude the Court from making such finding and
piercing the
corporate veil in this matter.
71.
The respondent contends that the facts of the matter establish a
basis and the reason to
disregard the separate juristic personalities
of the respondent and Apoldo in order to then grant the respondent
the rental remission
as sought. The respondent relies on the factors
in paragraph 21 of Mr Pick’s supplementary affidavit in support
of the contention
that Apoldo and the respondent are in effect not
separate entities or that there is no substance to distinguish
between them.
72.
Mr Pick points out that his father holds 100% of the shares in both
entities and is a director
of both; the deponent himself is the
managing director of both companies which include branches in
Johannesburg; ABSA Bank regards
the respondent, Apoldo and Dine &
Grill in Sandton as part of one group of companies; the branding,
marketing and intellectual
property of the entities are the same; the
entities have the same meat and wine supplier; the suppliers regard
the two entities
as one and the same business; Apoldo and the
respondent share the same administrative offices, one group
accountant, the same audit
firm and the businesses fund each other.
For example, the respondent advanced R12 million to fund fixtures and
fittings of the
Green Point premises. In addition, the cash flow
generated by the branches in Sandton and Cape Town is available for
the group
as a whole and group accounts reflect the profit and loss
of the business of the respondent as a whole.
73.
To add, the respondent avers that the applicant was aware of the
existence of Apoldo though
raised this aspect very late in the matter
and through its actions, it signified that it accepted and regarded
the two entities
to be one and the same. Furthermore, it is submitted
that I should ignore distinction between the two companies for
purposes of
the relief sought in the amended counter application.
74.
In contrast to the respondent’s approach and submissions, the
applicant's counsel
has referred me to section 20(9) of the Companies
Act
[55]
. Similarly, the
applicant also relies on
Ex
parte Gore
and it is submitted that usually improper conduct or fraud were
present in cases where the corporate veil was lifted. The submission

is that in light of the authorities on the topic, and the facts and
circumstances of the matter, as alleged, there are no circumstances

for a claim that there be a piercing of the corporate veil or that
the respondent and Apoldo are to be regarded by the Court as
one
entity or that the separate identities are to be ignored for purposes
of the amended counter application.
75.
Section 20(9) of the Companies Act states that:
(9)
If, on application by an interested person or in any proceedings in
which a company is involved, a court
finds that the incorporation of
the company, any use of the company, or any act by or on behalf of
the company, constitutes an
unconscionable abuse of the juristic
personality of the company as a separate entity, the court may—
(a)
declare that the company is to be deemed not to be a juristic person
in respect of any right, obligation
or liability of the company or of
a shareholder of the company or, in the case of a non profit
company, a member of the company,
or of another person specified in
the declaration; and
(b)
make any further order the court considers appropriate to give effect
to a declaration contemplated
in paragraph (a).
76.
My understanding of section 20(9) is that the Court must be able to
find an
unconscionable
abuse
of the juristic personality of the company as a separate entity
before it may pierce the corporate veil. In
Hulse-Reutter
and Others v Godde
[56]
,
the
SCA held that the separate legal personality of a company is to be
recognized and upheld except in unusual circumstances and
that much
would depend on a close analysis of the facts of each case,
considerations of policy and judicial management. This view
was
echoed in
Amlin
(SA) (Pty) Ltd v Van Kooij
[57]
at paragraph 22 where the Full Bench of this Division stated that
Courts will disregard the separate legal personality of a company

where it is used to conceal wrongdoing or avoid obligations.
Furthermore, the Court held that the piercing of the veil  must

be resorted to sparingly and as a last resort where justice will not
otherwise be done between the litigants
[58]
.
Amlin
and
Hulse-Reutter
are authority that the corporate veil may only be lifted in
exceptional circumstances. In
Cape
Pacific Ltd v Lubner Controlling Investments (Pty) Ltd and
Others
[59]
,
the
Appellate Division (as it was) indicated that each case in
determining whether the Court should pierce the corporate trial,

involved a process of inquiry into the facts and the Court did not
formulate any general principles for application as to when
the
corporate veil may be pierced.
77.
Moving forward a few years, Binns-Ward J had the opportunity in
Ex
parte Gore
to embark on a thorough and detailed examination of the statutory
framework of section 20(9) for piercing the corporate veil and
the
common law approach. In an Order wherein  leave was granted to
liquidators of several companies to promote certain of
the companies’
assets to be dealt with as if they were the property of the holding
company, the learned Judge found that
the liquidators’
investigations uncovered that the affairs of the group were, in all
material respects, conducted in a fashion
where there was no
distinction of the corporate identity of the various companies of the
particular group
[60]
.
78.
At paragraph 15 of
Ex parte Gore
, Mr Justice Binns-Ward
remarked that insofar as the group was concerned (the King Brothers),
the conclusion was drawn that through
its activities and disregard of
the separate corporate personalities of the companies within the
group, the finding was that the
group was in fact a sham and that
there was no distinction as to which company within the group,
investors’ funds were allocated
to. At paragraph 29 of the
judgment, the learned Judge stated that:
‘
In
my view the determination to disregard the distinctness provided in
terms of a company’s separate legal personality appears
in each
case to reflect a policy based decision resultant upon a weighing by
the court of the importance of giving effect to the
legal concept of
juristic personality, acknowledging the material practical and legal
considerations that underpin the legal fiction,
on the one hand, as
against the adverse moral and economic effects of countenancing an
unconscionable abuse of the concept by the
founders, shareholders, or
controllers of a company, on the other.  The courts have shown
an acute appreciation that juristic
personality is a statutory
creation and that ‘their separate existence remains a figment
of law, liable to be curtailed or
withdrawn when the objects of their
creation are abused or thwarted’.
[61]
79.
In my view, paragraph 29 of the judgment provides guidance to Courts
in matters where a
party seeks an order that the corporate veil be
pierced or that the separate legal or juristic personalities of the
corporate entities
be disregarded, such as in this matter:
consideration should be afforded to the legal concept of juristic
personality, which must
be recognized and given effect to; in
addition, there should be a deliberation of the legal considerations
related to the separate
juristic personality versus the negative
moral and economic effects of approving of an unconscionable abuse of
the corporate entity.
Ex
parte Gore
makes it clear that the remedy in section 20(9) is available in
circumstances where the facts of a particular case justifies it,
and
in so doing detracts from the notion that the piercing the corporate
veil should only be regarded as being adopted in exceptional
or
drastic situations, such as was held in
Amlin
[62]
.
80.
Turning to the facts at hand, Mr Alan Pick is the director and
founder of Apoldo and the
respondent. The two juristic entities share
the same accounting officers and auditors, there is one group
accountant for all three
entities (this includes the Dine and Grill
in Sandton), their administrative functions are dealt with by the
same person, the auditing
firm is shared and the business of the
respondent operates on the basis that the cash flow generated by the
various branches is
available for the business or group as a whole.
Furthermore, the companies share the same financial institution and
from the financial
statements of Apoldo, one notes that Dine and
Grill and the respondent extended loans to Apoldo in 2017
[63]
.
From
BNG6.1
to
6.6
,
the tax invoices from March 2020 to August 2021 and the management
accounts attached to the answering affidavit, one sees that
invoices
for rental and charges are addressed to Apoldo Trade CC t/a The
Butcher Shop and Grill.
81.
However, the respondent’s correspondence received from the City
of Cape Town related
to an application for a licence to sell
take-away foods during the lockdown, refers only to the respondent
with no reference to
Apoldo. Similalrly
RA1,
the management
accounts from March to October 2020, refers to the respondent only
with no reference to Apoldo and reliance is placed
on the figures in
these accounts in respect of the rental remission claim. These
documents were also confirmed by Mr Hendler. To
the extent that the
respondent, Apoldo and Dine and Grill share administration, the same
financial institution, accountants and
auditors, have the same
suppliers, the same shareholders and directors and that the profit is
distributed between the companies,
I can accept that they belong to
the same group of companies established and managed by Alan Pick and
his son Dani Pick.
82.
Having regard to what is stated in
Ex parte Gore
and
the other authorities referred to, I agree with the applicant’s
counsel that there is absolutely no evidence in this
matter of any
sham, fraud or impropriety on the part of the directors or
shareholders of the respondent or Apoldo. That said, there
is no
evidence – and it has not been suggested – that there was
an
unconscionable abuse
of either of these two juristic
entities. Understanding that in
Ex parte Gore,
section
20(9) was interpreted widely and that a Court approaching the
question of piercing the corporate veil should approach it
less
formalistically and with more flexibility, the facts and evidence
presented do not support any view of an unconscionable abuse
of the
juristic personality of either the respondent or Apoldo as referred
to in section 20(9) of the Companies Act.
83.
To illustrate further, I agree with counsel for the applicant that
the authorities provided
and referred to by both parties, indicate
that the legal fiction of piercing the corporate veil was applied
against a debtor company
for the benefit of a creditor and not in
favour of debtors. In this matter, the respondent, which in the
circumstances is the
applicant’s debtor, seeks to
avoid liability by requesting that the corporate veil be pierced in
order that the separate
legal personalities of Apoldo and itself be
disregarded so that it be entitled to claim a rental remission. In my
view, what is
being sought is that the concept and principle of
piercing the corporate veil and/or ignoring the separate legal
personalities
of Apoldo and the respondent in favour of a debtor and
there is no justification for such relief.
84.
The fact that invoices were rendered to Apoldo Trade CC t/a The
Butchers Shop and Grill
and that the applicant at some stage realized
that there was a different entity operating from the leased premises
does not form
a basis for disregarding the separate legal
personalities of Apoldo and the respondent. Furthermore, there is no
evidence that
an entity called Apoldo Trade CC t/a The Butchers Shop
and Grill ever existed as the CIPC reports indicate that the
respondent
at all times, first as a close corporation and then as a
company, was called The Butcher Shop and Grill
[64]
.
85.
The respondent is reminded of the remarks of Van Reenen J in
Dros
(Pty) Ltd and Another v Telefon Beverages CC and Others
[65]
which preceded
Ex
parte Gore
and are insightful and apt in the circumstances of this matter:
‘
Courts
do not have a general discretion to disregard a company's separate
legal personality whenever they consider it just or convenient
to do
so.  The then Appellate Division (per
Smalberger,
JA
who wrote
the majority judgment) in
Cape
Pacific Limited v Lubner Controlling Investments (Pty) Ltd &
Others
1995(4) SA 790 at 803 G-H and I-J expressed the view that it is a
salutary principle that courts should not lightly disregard a

company's separate legal personality, but should strive to give
effect to it, as to do otherwise would negate and undermine the

policy and principles that underpin the concept of separate corporate
personality and the legal consequences that attach thereto,
but held
that where fraud, dishonesty or other improper conduct is present,
other considerations come into play, in which event,
the need to
preserve the separate corporate personality of a company has to be
balanced against policy considerations favouring
the piercing of the
corporate veil.’
86.
Given what I have found above, I am inclined to conclude that there
is no basis for exercising
my discretion in terms of section 20(9) of
the Companies Act nor any cause to disregard the separate legal
personalities of Apoldo
Trade Pty Ltd and the respondent. There is
also no cause to find that justice would require such a disregard to
distinguish between
the separate juristic personalities of the two
companies.  In the result, the relief sought in prayer 1A of the
further amended
counter application is  refused.
Vis
maior, casus fortuitus
and
rental remission
87.
The above finding leads to the next question which is whether the
respondent may claim rental
remission in circumstances where,
although it is the lessee in terms of the parties’ lease
agreement, it has not occupied
the leased premises? Before I turn to
answer the question, a consideration of some authorities and legal
principles on the matter
of
vis maior
and rental remission
would be appropriate.
88.
The authors of
Wille’s
Principles of South African Law
[66]
state
that:
“
Vis
major, or superior force, is some force, power or agency which cannot
be resisted or controlled by the ordinary individual.
The term is now
used as including not only the acts of nature, vis divina, or ‘act
of God’, but also the acts of man.
Casus fortuitus, or
inevitable accident, is a species of vis major, and imports something
exceptional, extraordinary, or unforeseen,
and which human foresight
cannot be expected to anticipate, or which, if it can be foreseen,
cannot be avoided by the exercise
of reasonable care or caution.
[67]
89.
In
United
Mines of Bultfontein v De Beers Consolidated Mines
[68]
,
the plaintiff company had leased certain claims in a diamond mine to
the defendant and these were  to be paid without any
deduction
or abatement. At the outbreak of the Anglo-Boer war in October 1899
to March 1900, the mine was occupied by the Queen’s
military
forces  and it was pleaded that during this period, the lessee
was deprived of the beneficial use, occupation and
enjoyment of the
property and therefore not liable for rent for that period. In the
Court
a
quo
,
judgment was granted in favour of the plaintiff. On appeal, it was
recognized that a war amounts to
vis
maior
but
the appeal was dismissed on the basis that legislation passed prior
to the onset of the war
[69]
deprived the defendant of its common law right to remission or
abatement of rent where it was deprived of beneficial occupation
of
the leased property.
90
.
In
Bayley
v Harwood
[70]
the
purpose of the leased premises was in order to conduct certain
businesses for which trading licenses were necessary (a resort).
The
licensing board refused the lessee’s application
for licenses unless certain substantial alterations were
made to the
resort in terms of the By-laws. The lessor refused to carry out the
renovations causing the lessee to vacate the premises,
tendering rent
up to the date of vacation. The Court found that the legislative
prohibition of the use of the property until alterations
were
effected amounted to
vis
maior
.
At 507D-F of its judgment, the Appellate Division (as it then was)
found that the changes in the law had prevented the lessee’s

beneficial enjoyment of the premises, which interference was direct
and immediate and the lessee could not reasonably have made
provision
for it in the lease. In
Bayley
v Harwood
it
was held that the enactment of legislation amounts to
vis
maior
.
Consequently, the Appellate Division upheld the appeal, finding that
the lessee was entitled to claim rental remission.
91.
Rebel
Discount Liquor Group (Pty) Ltd v La Rochelle Erf 615 Investments
CC
[71]
is
authority for the finding that a lessor’s duty is to deliver
the leased property in a proper condition and that the property
is to
be placed at the disposal of the lessee for its  undisturbed use
or enjoyment (
commodus
usus
)
[72]
.
Casus
fortuitus
,
which is a form of
vis
maior
,
refers to a fortuitous event which is not foreseeable
[73]
.
Thus, a lessee’s
commodus
usus
may be disturbed or totally deprived by
vis
maior
or
casus
fortuitus
and as is seen in the earlier
Bayley
v Harwood
,
where an act of legislation which has as its result the direct
interference with the lessee’s beneficial occupation, use
and
enjoyment of the leased premises, it may be regarded as
vis
maior
and is not attributable to either of the parties to the lease.
92.
Thompson
v Scholz
[74]
,
an unreported judgment of the SCA and one which the respondent
strongly relies upon for its relief for rental remission, has
garnered much consideration by later authorities. In view of my
ultimate finding in this matter, it would be unnecessary to deal
in
great detail with the various considerations which the aforementioned
judgment has attracted. However, certain pertinent aspects
bear
mentioning: the matter did not involve a lease agreement but rather,
a sale of a farm and its residence. By the time the purchase
price
was paid and transfer registered in the defendant's name, the
plaintiff was still occupying the residence and an issue arose

regarding occupational interest whereby the plaintiff subsequently
instituted an action against the purchaser. Nienaber JA at page
247
A-C of the judgment, expressed the view that where the lessee is
deprived in whole or part, he can be excused from paying rental
–
in other words, be entitled to an abatement thereof –
pro
rata
to the reduced enjoyment of the property. The learned Judge of Appeal
went on to state that in circumstances where the lessee is
entirely
deprived of use and enjoyment, he would be entirely absolved from
paying rental
[75]
.
93.
While
Tudor
Hotels Brasserie & Bar (Pty) Ltd v Hencetrade 15 (Pty) Ltd
[76]
dealt with an appeal regarding an eviction, it considered the issue
of reciprocity between the landlord and tenant in circumstances
where
rent was paid in arrears and found that rent payable in arrears
alters the landlord’s reciprocal obligation to provide

beneficial occupation to the lessee
[77]
.
In
Ethekwini
Metropolitan Unicity Municipality v Pilco Investments CC
[78]
,
the SCA held that in circumstances where the lessee is deprived of
the use of the property, he is entitled to rental remission
where the
amount is capable of prompt ascertainment and it may be set off
against the landlord’s rental claim and if not,
the lessee was
obliged to pay the rent as agreed and thereafter claim the amount
remitted
[79]
.
94.
With specific reference to this matter
[80]
,
and after consideration of the above authorities and those referred
to in the footnotes herein, I highlight the following:
94.1
it is evident that a lessee is entitled to claim rental remission
where there is a deprivation of or lack
of beneficial use or
occupation
(commodus usus)
, partially or fully, of the leased
premises, and where the interference is caused by
vis maior
or
casus fortuitous
, neither of which eventuality is the fault or
cause of either the lessor or lessee;
94.2
an act of legislation has been found to constitute
vis maior
and
it thus follows that the COVID-19 regulations passed in terms of the
Disaster Management Act would amount to
vis maior
or
casus
fortuitous;
94.3
the rental remission may be set off against the lessor’s claim
(for non-payment of rental) if it is
capable of speedy and prompt
ascertainment;
.94.4
the landlord has the obligation to provide beneficial occupation of
the leased premises to the lessee;
94.5
while the authorities recognize reciprocity between the two parties,
where the rental is payable in arrears,
the lessor’s reciprocal
obligation to provide beneficial occupation to the lessee may be
affected;
94.6
the lessee’s obligation to pay rent in terms of the lease is
not discharged (even where the impossibility
of performance is not
due to his fault) where the parties specifically provided in their
agreement that the lessee would be responsible
for and/or take the
risk upon himself for the impossibility supervening
[81]
.
95.
Having stated the above, I am of the opinion that further context
should be added to the
preceding paragraph. While the above factors
are mentioned and have been highlighted in the authorities which
counsel referred
me to and which I have researched on the question of
the common law rental remission, each matter where rental remission
due to
vis maior, casus fortuitus
or impossibility of
performance is claimed as a result of the effect of the COVID-19
regulations imposed, should be considered
within the context of the
merits of the specific matter. The context I refer to would include
consideration of the specific regulations
applicable at the relevant
time(s), the extent to which performance was not possible, the extent
to which there was a lack of beneficial
occupation (if any) and,
quite importantly, the terms of the parties’ lease agreement.
As to the latter, it is especially
relevant whether or not provision
was made in a lease agreement for the risk in the eventuality of
vis
maior, casus fortuitus
or impossibility of performance. It would
thus be prudent that a commercial lease agreement includes a clause
dealing with the
risk associated with
vis maior, casus fortuitus
and the impossibility of performance.
96.
It warrants emphasising that I have not addressed the
dicta
relevant to rental remission claims based on the lessors’
interference of the lessee’s beneficial occupation as this

matter relates to a rental remission claim based on loss of
beneficial occupation due to
vis maior/casus fortuitus.
Is
the respondent entitled to claim rental remission
?
97.
The lockdown regulations were clearly a form of
vis maior
, of
that there is no doubt. It is common cause that the respondent did
not occupy the leased premises during the lockdown and extended

lockdown periods mentioned in the counter application and at the time
that the various regulations were passed as from March 2020.
It is
further not in dispute that Apoldo occupied and traded from the
premises and utilised the entire leased area. The question
thus
arises whether, and in circumstances where I have not disregarded the
separate corporate personalities of Apoldo and the respondent,
the
respondent as lessee may claim rental remission where it has sub-let
the leased premises?
98.
The lessee is entitled to the beneficial use and occupation of the
leased premises and the
lessor has the obligation to provide it. An
addendum was concluded allowing the respondent to sub-let to Apoldo.
Aside from the
addendum, which indicates that the applicant consented
to the respondent sub-letting the premises to Apoldo, there is no
evidence
that the latter paid rent to the respondent and it has
certainly not been alleged that this occurred. The addendum was
concluded
in accordance with the provisions of paragraph 16 of the
lease agreement.
99.
“
Beneficial
occupation”
in terms of the lease is defined as “
the
physical possession and control of the leased premises”
[82]
.
In the matters dealing with rental remission defences or claims, it
is evident that the prerequisite for such a claim is that
the
lessee’s beneficial occupation, use or enjoyment of the leased
premises must have been lost, disturbed or partially deprived,

whether (as in this case) by
vis
maior, casus fortuitus
or a supervening event. From the evidence, the applicant as lessor
provided the respondent as lessee with beneficial occupation
of the
leased premises after conclusion of the lease in 2014 and the lessee
remained in beneficial occupation or physical possession
of the
premises until the applicant became aware a few years later in 2019
that it was no longer occupying the property, and as
it was made
known from the affidavits, Apoldo then physically occupied the entire
leased premises. The evidence indicates that
the lessee was not in
physical possession and control of the leased premises from 2019,
possibly earlier.
100.
The respondent relies on
North
Western Hotel Ltd v Rolfes Nebel & Co
.
[83]
,
a
1902 judgment of the erstwhile Transvaal Supreme Court as its
authority that a tenant is entitled to rental remission from the

landlord for a sub-tenant’s loss of the full use and enjoyment
of the leased premises. As to the facts of this matter, in
an action
instituted by the plaintiff, the owner of a hotel which was leased to
the defendant and which the latter sub-let to a
third party, the
sub-lessee on the same terms and conditions as the lease. The
government at the time forbade the sale of liquor
in hotels and bars,
resulting in the sub-lessee closing the hotel. Thereafter, during the
war, the sub-lessee re-opened the hotel
as it was obliged to house
military forces therein and after a further period, the sub-lessee
lost the right to sell liquor on
the premises, resulting in the
hotel’s closure once again. Unbeknown to the lessee, the
sub-lessee instituted a claim for
compensation with the authorities
as a result of the losses caused by the military occupation of the
hotel and damage caused to
the hotel. The lease was never cancelled.
101.
At page 329 of the abovementioned judgment, Wessles J stated that:
‘
The
defendants contend that inasmuch as the sub-lessees had no beneficial
occupation they are not responsible for rent to the lessees,
and
therefore the lessees had constructively no beneficial occupation,
and can set up the want of beneficial occupation on the
part of the
sub-lessees. The contention of the defendants that they are in the
same favourable position as the sub-lessees is practically
admitted
by the plaintiff company; for though the company denies generally the
amended plea of the defendants, their counsel, Mr
Leonard, boldly
accepted this position and argued his whole case from the standpoint
that the lessees and sub-lessees were one
[84]
.
’
Evident
from the above passage of the judgment is the fact that the plaintiff
accepted that the lessee and sub-lessee were one and
the same and the
matter was argued from this perspective. The Court made various
findings regarding the periods of loss of occupation
and in respect
of the last period of occupation, it was held that the sub-lessee was
totally deprived of beneficial occupation
as the hotel was occupied
by military forces. The expulsion of the sub-lessee by military
forces was regarded as
vis maior
and the claim by the
sub-lessee for compensation from authorities did not destroy the
lessee’s common law right of remission
of rental.
102.
Both counsel submitted that they can find no later authority on the
question of whether a lessee may claim
rental remission based on loss
of beneficial occupation by the sub-lessee which occupies the leased
premises and in my research,
neither could I. Counsel for the
respondent argued that
North
Western Hotel
remains good in law more than 100 years later and has not been
overturned. The applicant’s counsel is unpersuaded by the

aforementioned authority which he describes as a ‘novel
argument’
[85]
.
103.
Certainly, I find I agree with the applicant’s counsel that the
abovementioned judgment does not make
findings that a lessee, as a
matter of law, may claim rental remission from the lessor where the
sub-lessee’s beneficial
occupation, loss or enjoyment of the
leased premises is disturbed. On my understanding of the judgment,
the Court accepted the
approach adopted by the parties and determined
the matter from the perspective that the lessee and sub-lessee were
one and the
same. To add further, the judgment does not contain a
finding nor does it establish a legal principle that a lessee may
claim rental
remission where it is not in beneficial occupation or
physical control of the leased premises; or, put another way, that a
lessee
may claim rental remission where the loss of use and enjoyment
of the leased premises is that of the sub-lessee’s.
104.
In addition, in my evaluation, the important and distinguishing fact
as stated at page 329 of the judgment
above is that the plaintiff in
the action (landlord) took no issue and accepted that the lessee and
sub-lessee were one and the
same and thus that the lessee was in the
same position as the sub-lessee in that it had lost beneficial
occupation as a result
of the military forces occupying the hotel.
The lessee, as defendant in the action, thus premised its apparent
right in terms of
the common law to claim rental remission on the
basis that it had (also) lost beneficial occupation of the hotel as a
result of
its’ sub-lessee’s loss of beneficial
occupation.
105.
Not only was no legal principle as submitted by the respondent
established in
North Western Hotel
but its facts and
circumstances are distinguishable from those in this matter. The
applicant in this matter has steadfastly opposed
any notion that the
respondent and Apoldo are one and the same entity and I need not
traverse these findings again. Furthermore,
I have already found that
the separate juristic personalities of the two entities may not be
disregarded.
106.
In circumstances where a sub-lease is concluded, there are two
contracts: the lease between lessor and lessee,
on the one hand, and
the sub-lease between lessee and sub-lessee
[86]
.
The lessor has obligations toward the lessee and not toward the
sub-lessee
[87]
. The addendum
concluded between the parties in terms of which the applicant
consented to the respondent sub-letting the premises
in no way
creates an agreement in terms of which the applicant is obliged to
provide beneficial occupation to the sub-lessee nor
does it create
obligations and rights between the applicant and Apoldo.
107.
The facts in this matter are that the respondent was not occupying
the leased premises nor in physical possession
or control thereof.
The reliance on
North Western Hotel
in my view is, with
respect, misplaced as it provides no authority for the view that the
respondent may claim rental remission
from the applicant where it was
not in occupation, where the sub-lessee occupies the leased property
and where any alleged loss
of beneficial occupation, use or enjoyment
of the leased premises, was that of the sub-lessee’s.
Furthermore, I respectfully
disagree with the judgment which, because
the parties approached the matter from the viewpoint that the lessee
and sub-lessee were
one and the same, proceeded from the same
viewpoint and disregarded the fact that the lessee had not been in
physical control or
possession of the leased hotel and thus not in
beneficial occupation thereof. In my respectful view, a lessee cannot
avail itself
of the common law claim for an abatement or remission of
rent in circumstances where its use, enjoyment and beneficial
occupation
was not deprived or disturbed. Accordingly, I do not find
North Western Hotel
to be binding authority in the
circumstances.
108.
In conclusion, the respondent’s lack of physical occupation of
the leased premises and failure to prove
on a balance of
probabilities, a lack of beneficial occupation, has the result that
it is not entitled to claim rental remission
from the applicant and
accordingly therefore its counter application as further amended is
dismissed. There is no basis, in light
of the dismissal, to consider
the alternative relief in the counter application.
Applicant’s
main claim (as amended)
109.
The only disputes in this respect related to the amounts due in
circumstances where part payment of rental
was made, payment of staff
charges and interest. In light of the dismissal of the counter
application, the conclusion is that the
respondent, still bound by
the lease agreement, was required to comply with its terms and pay
the full rental, operating and staff
costs
[88]
plus VAT and interest. The amount of
R
277 653,94
received after the invoices
BNG24
were
presented for payment, is admitted by the applicant and should be
deducted from the
R2
980 845,11
claimed in the amended application. In conclusion, I am satisfied
that the applicant has made out a case for the relief sought
and is
successful with its main application.
Costs
110.
As to costs, clause 41.8 provides for attorney and client costs and I
see no reason why the parties should
not be held to this clause in
respect of the main claim. As to the striking out applications, the
respondent is entitled to its
costs of both applications and this is
a matter where the employment of two counsel was not unwarranted.
Lastly, costs in respect
of the counter application does not, in my
view, warrant a special nor punitive costs order.
Orders
111.
I accordingly grant the following orders:
(a)
The applications to strike out are dismissed with costs including
costs of two counsel where
so employed.
(b)(i)
The respondent is ordered to make payment to the applicant of
R2
703 191, 17
representing all amounts due by the respondent to the
applicant as at 1 June 2021 pursuant to the terms and provisions of
the lease
agreement concluded between the parties dated 20 February
2014.
(b)(ii)
The respondent is to pay interest on the above amount from 1 June
2021 to date of payment of all amounts due
at a rate equivalent to
the prime rate of interest of ABSA Bank Limited.
(b)(iii)  The
respondent is ordered to pay the applicant’s costs on a scale
as between attorney and client, plus VAT.
(c)
The counter application as further amended is dismissed with costs.
(d)
Costs of 15 June 2021 shall be costs in the cause.
M
PANGARKER
ACTING
JUDGE OF THE HIGH COURT
For
applicant:                          Mr

P Corbett SC
Instructed
by:                           Van

Rensburg & Co.
Per Mr L J Van
Rensburg
For
respondent:                       Mr

J Muller SC
Mr
L Kelly
Instructed
by:                          Werksmans

Attorneys
Per Mr R Gootkin
[1]
The
respondent was converted to a company but the citation remains as
per the Notices and documents filed in the matter throughout
the
proceedings
[2]
BNG 7,
p117
[3]
57 of
2002
[4]
GG
R398 dated 25 March 2020
[5]
See
for example GN480 of 2020 in GG 43258 (29 April 2020)
[6]
The
adjusted alert levels are found on the South African Government
website
www.gov.za
‘
COVID-19/
NOVEL CORONAVIRUS - About alert system’
[7]
BNG4.1,
4.2, p 95-96
[8]
P28-93
[9]
P30
[10]
Spolander
v Ward
1940
CPD 24
at 27-32
[11]
P139
[12]
P136
[13]
P269
[14]
P271-273
[15]
The
period for which the arrear rental is charged
[16]
P353-355
[17]
See
Order marked “X”, p357-360. The legal representatives
were also informed on 14 June 2021 that I was seized with
a similar
matter where a defence of rental remission (the applicant’s
claim on motion was for arrear rental during the
lockdown in 2020)
was raised. As things happened, further submissions were made by
counsel  in light of a recent judgment
delivered by another
Division which counsel had brought to my attention. However, the
entire matter was settled between the parties
in October 2021, with
no judgment being delivered in matters  11404/2020 and
14647/2020 (consolidated)
[18]
Mr
Gamsu is the applicant’s deponent; Mr Dani Pick is the
respondent’s deponent
[19]
P430
[20]
P360-361
[21]
P477-478
[22]
BNG2,
Schedule 1, p89
[23]
BNG7,
p115-117
[24]
BNG8,
p119-129
[25]
BNG8,
par 5, p120
[26]
BNG2,
par 1.2.2, p32
[27]
Clause
7.13 of lease, p46
[28]
AA3,
par 7, p179-180
[29]
AA6,
p187-189
[30]
See
Turnover table, AA6, p189
[31]
My
reference to an extension relates to the period referred to in the
amended application (i.e. until 1 June 2021)
[32]
The
respondent’s answering affidavit served to also be a founding
affidavit in its counter application
[33]
Annexure
RA1
is attached to Mr Pick’s answering affidavit to the main
application/founding affidavit to the counter application, p
263
[34]
BNG24,
p291-304
[35]
See
RA1, p263
[36]
See
annexure D which reflects the adjusted amounts in respect of April
2020 rental and depreciation
[37]
The
reference to the various lockdown levels and regulations is common
cause
[38]
It is
common cause that the country was in the second wave of the
pandemic, hence the alert level was raised to curb contact between

citizens, reduce the rate of infections and number of fatalities
[39]
P391-2
[40]
See
BNG27. Note,
Mr
Hendler is employed at MGI Bass Gordon
[41]
BNG30,
p428-9
[42]
BNG31,
p430
[43]
Dated
16 November 2020, p268-9
[44]
Pages
254-261
[45]
[2018]
ZASCA 54
[46]
My
emphasis
[47]
[2012]
ZASCA 49
[48]
See
also
Shakot
Investments (Pty) Ltd v Town Council of the Borough of Stanger
1976 (2) SA 701
(D) at 704-5;
Shephard
v Tuckers Land and Development Corporation (Pty) Ltd (1)
1978 (1) SA 173
(W) at 177G
[49]
See
respondent’s rule 30 and 30A application and accompanying
affidavit, p344-8
[50]
Annexures
attached to Mr Pick’s founding affidavit to the counter
application, p
186-9
[51]
P215
[52]
See
para 25-7 of the judgment
[53]
While
the earlier invoices were addressed to Apoldo t/a The Butchers Grill
and Shop, neither party took issue with this reference
[54]
2013
(3) SA 382 (WCC)
[55]
71 of
2008
[56]
2001
(4) SA 1336
(SCA) at par 20
[57]
2008
(2) SA 558 (C)
[58]
Amlin
,
p
ar
24
[59]
[1995] ZASCA 53
;
1995
(4) SA 790
(A) at 808E
[60]
Ex
parte Gore
at par
8
55
Footnote
30
at the conclusion of paragraph 29 of
Ex
parte Gore
reads as follows:
‘
30
In
ADT Security
(Pty) Ltd v Botha and Others
[2010]
ZAWCHC 563
, at para.s 16-18, I remarked upon what I considered to be
the ‘
generally flexible approach
’
indicated in the
Cape Pacific Ltd
judgment as being applicable when piercing of the corporate veil
falls to be considered and determined; an observation illustrated

with reference to Scott JA’s remark in
Hülse-Reutter
supra, at para.20 that ‘
Much will
depend on a close analysis of the facts of each case, considerations
of policy and judicial judgment
’.’
[62]
See
par 34
[63]
DP4,
p264were
[64]
See
BNG5, BNG28 and 29
[65]
[2002]
ZAWCHC 53
at par 23
[66]
9
th
edition, p849
[67]
I have
excluded the footnote references in
Wlle’s
Principles of South African Law
from
this passage, but these are footnotes 1075 – 1080 on pages
849-850
[68]
(
1900)
17 SC 419
[69]
General
Law Amendment Act, 1879
[70]
1954
(3) SA 498
AD
;
Hansen,
Schrader & Co. v Kopelowitz
1903 TS 707
at 716;
Peters,
Flamman and Co v Kokstad Municipality
1919 AD 427
[71]
[2005]
ZAWCHC 88
[72]
Rebel
Liquor
,
par
47
[73]
Rebel
Liquor
,
par
52
[74]
1999
(1) SA 232 (SCA)
[75]
The
SCA dealt, referred to and applied the propositions regarding the
exceptio
non adimpleti contractus
set out  in
BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979 (1) SA 391
(A)
[76]
[2017]
ZASCA 111
– confirms decision of Binns-Ward J in
Hencetrade
15 (Pty) Ltd v Tudor Hotel Brasserie & Bar
(Pty)
Ltd
[2016] ZAWCHC 55
; the matter involved and eviction and did not
involve vis maior; see also
Van
der Stel Sports Club v Cape Perfect Health CC t/a Perfect Health
[2018] ZAWCHC 167
[77]
At par
11
[78]
[2007]
SCA 62 at par 22
[79]
See
also
Arnold
v Viljoen
1954 (3) SA 322
(C)
[80]
It is
important to note that I am not dealing with nor addressing issues
related to reciprocity in terms of the lease agreement
[81]
See
Nuclear
Fuels Corporation of SA (Pty) Ltd v ORDA AG
1996 (4) SA 1190
(A) at 1206-11
and the discussion about foreseeability of the risk
[82]
BNG2,
par 1, p32
[83]
1902
TS 324
[84]
My
emphasis
[85]
Applicant’s
supplementary heads of argument, par 24, p9
[86]
Kerr’s
Law of Sale and Lease, Fourth Edition, G Glover, p 534
[87]
See
Sweets
from Heaven (Pty) Ltd v Ster Kinekor Films (Pty) Ltd
1999
1 SA 796
(W) at 800E-F
[88]
BNG2,
par 7, p42